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Crisis in the family court system

View profile for Victoria Gethin
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The Law Society has reported that tens of thousands of children are being left in limbo by a crisis in the family court system as a result of care proceedings and parental separation cases taking more than a year to resolve with data from the Children and Family Court Advisory and Support Service (Cafcass) revealing that children who have been removed from their parents by the state are having to wait an average of 46 weeks to get a final decision on where they will live. The President of the Law Society, Lubna Shuja said: "What is often missed in the debate around the unacceptable backlogs in our family courts is the impact on children. They are suffering the very real consequences of months and sometimes years of uncertainty about their future, preventing them from having the stability they need to thrive. Our members are telling us of instances where court delays are leading to increased tension between parties. This is undermining a collaborative and child-centred approach to family separation."

The data relates to public law family proceedings where children are considered to be at risk of harm due to concerns about the parenting they are receiving and where they may be removed by local authorities and placed in the care of family members or in foster care. There are however also lengthy delays in private law children proceedings where there is a dispute between a separated parents about where a child should live or whom they should spend time with and how long. 

In public law proceedings there is a statutory time frame meaning it is enshrined in law that in these proceedings, where local authorities are making applications in relation to children in order to protect them, the proceedings should conclude within 26 weeks. This was introduced in 2014 due to major concerns that cases were being delayed and the impact on all involved, most importantly the children who are the subject of those applications and often some of the most vulnerable in society as a result of their experiences. Prior to that the average time taken for care proceedings had reached 61 weeks. When the 26 week timeframe was initially introduced there was a concerted effort from all professionals involved in these cases to reduce the delay and by 2016 the national average time taken for care cases reduced to 27 weeks, so effectively half what it had been prior to that. 

Since then delays began to again take effect and it is thought this was due to a rise in in these types of applications and then the pandemic. 

The President of the Family Division, Sir Andrew MacFarlane acknowledges the backlog the family courts are facing whilst they are continuing to recover from the pandemic. During the pandemic the courts were able to continue working and quickly transitioned to arrangements for video hearings instead of attendance hearings but there was still a backlog of cases. 

Alongside this there are societal issues often families may have complex problems relating to poverty, mental health issues, substance and alcohol abuse and domestic abuse or cases where parents themselves have suffered neglect. With changes in society the cases themselves become more complex over time. 

There are also the pressures faced by all professionals working with families. Social work is a highly pressured job. Retention of social workers, like other professionals, is a real issue and for those leaving the profession or taking on other roles this can impact on deadlines where assessments may have been ordered by the court but are then not able to be filed on time.

Resources and funding has been a key factor with lots of the support available to families no longer being available to the same extent and preventative support coming from organisations such as Sure Start no longer being available. In addition lots of the services that support these families, domestic abuse organisations or mental health services are struggling to meet demand and to offer the necessary support that may help families avoid facing such proceedings. Another issue which is impacting is the dire shortage of specialist placements for children who are beyond parental control or may be a risk to themselves or others which again can have a negative impact on the length of proceedings.

The pandemic will have also impacted on private law children disputes between separating or separated parents. In addition in these types of cases, parents may be  unrepresented as they cannot afford representation and legal aid is no longer available after swathes of legal aid were removed from scope in 2012. Legal aid is now only available where someone has prescribed evidence of child abuse or domestic abuse and if they are eligible depending on the prospects of success of their case and eligible for legal aid taking into account their income and capital.   This lack of representation will undoubtedly will have contributed to delays as solicitors can help their clients to consider ways in which they can avoid court proceedings altogether. If proceedings cannot be avoided legal representatives can assist their clients focus on the relevant issues in terms of their evidence and statements whereas it can be much more difficult for an unrepresented party without court experience to do so.

The impact on children and families

Within the very first section of the Children Act which governs these types of cases, it is made clear that delay in determining these types of applications is likely to prejudice the child’s welfare. At the very outset Children Act makes clear that the welfare of the child concerned is the court’s primary consideration.

Within public law proceedings the delay may mean that a child remains in an interim placement such as foster carer for a much longer period whilst decisions are made about where they should live in the long term. It is difficult to imagine how much this impacts on children not having that sense of permanence and security and stability. For older children who may have a greater understanding of what is happening it can be very distressing but also for younger children who will be very confused about what is happening and will struggle to understand.  Any neglect they may have suffered can impact on their sense of security and stability and have a profound impact on their development and ability to form trusting relationships with others in the short and in the long term. The impact is far reaching.

For children where there is no alternative other that they be placed for adoption, delays can have an adverse effect on their chances of being adopted as the chances reduce as they grow older and the age they join an adoptive family can impact on their ability to settle within that placement and feel secure and can impact on the likelihood of that placement succeeding.

Those involved in these cases may be suffering from mental health difficulties, addiction problems and domestic abuse: and will suffer additional trauma due to delays in the proceedings. Within private law proceedings even people without such difficulties, under the extreme stress of the proceedings can experience anxiety which may further impact on strained relationships between parents.

In private law proceedings again if the court is to determine where a child should live then the sooner that happens the better so the child or children can achieve that sense of permanence and not suffer ongoing uncertainty. In other cases where a parent has been refused contact the child may be deprived of the relationship with that parent pending decisions being made. Proceedings are usually an anxious time for all involved and can impact on the emotional welfare and wellbeing of all parties. In cases involving domestic abuse where allegations are denied, if it is relevant to the issue of whether the child should see the parent and how that should take place, then the court may have to make decisions about whether the abuse occurred; the longer it takes to make that decision will no doubt increase the anxiety of an individual who may be required to give evidence in relation to what they may have suffered.  

Efforts to reduce the delays

In terms of the public law proceedings there is a real push from the senior judiciary to ensure that efforts are made to shorten proceedings and to be more mindful of the 26 week timeframe. All involved including judges, local authorities, solicitors, barristers, social workers and guardians (appointed to represent the children in proceedings) are being told to ensure that the cases are more focussed, have fewer hearings and get to the heart of the issue at the earliest opportunity in an effort to reduce the backlogs.

To lay people reading this 26 weeks seems like a very long time in any event. One of the reasons why proceedings take many months is because there is a need to gather evidence and to undertake assessments of parents and extended family members who may be put forward to care for children. In some cases where necessary there may be expert assessment such as psychological assessments or drug and alcohol testing. There is now a real drive and clear strategy in place that local authorities should not issue these types of proceedings until all necessary assessments have been conducted with the family, so that the only cases brought to court are those that need to be there.  In addition the court is seeking to ensure that experts are only instructed when necessary which again should help to avoid delay.

In terms of private law proceedings. Again the courts accept that there is a need to improve their ability to meet the needs of children and parents who are before the family court in private law disputes but it is accepted that this is a hard task. Some of the cases involve some of the difficulties previously described such a mental health issues, substance misuse or domestic abuse but also there may be entrenched conflict between parents. Parents are encouraged to only use the family court as a last resort and to understand that it is in everyone’s interests to resolve their difficulties away from court if at all possible. Sometimes parents may threaten one another with issuing family court proceedings but they need to be aware that family court proceedings are not a way in which to air complaints and grievances about other parent. If parents cannot reach an agreement between themselves by talking and trying to work out what is best for the children involved then mediation is another option whereby they can sit down with an independent and impartial mediator who assists in trying to help them reach an agreement.  It has been the case for some time that unless it is an emergency or there are domestic abuse concerns that the parents must have gone to mediation first but the courts want to tighten this up. 

In addition there are pilots in two areas of the country in North Wales and Dorset in an attempt to interact with separated parents in conflict, with a view to resolving disputes for the benefit of their child taking a more holistic multi agency approach and gathering evidence before the start of proceedings and to ensure the protection of victims of domestic abuse. In addition the Law Society is calling on the government to restore early legal advice in family law cases to help parents better understand their rights and their options for resolving issues involving children.